HALTSONS TRUST, BANGALORE v. STATE OF KARNATAKA — 1997 DIGILAW 610 (KAR)

H. N. TILHARI, J. ( 1 ) BY this petition, petitioner has sought the relief in the nature of writ of certiorari for quashing the order dated 17-7-1997, bearing No. 2235 of 1997-98 (Annexure-J to the writ petition ). Petitioner has also prayed for issuance of writ of mandamus directing the 3rd respondent to rectify the defects pointed out by the petitioner in the representation dated 25-6-1996 (Annexure-G to the writ petition) and for grant of such other appropriate remedies or reliefs as this Court deems fit. ( 2 ) THE facts of the case in nutshell are that as per the petitioner's case, petitioner has been running the business in the name and style of M/s. Loodhia Traders, R. M. C. Yard, bangalore. Petitioner's case is that he applied for transfer of the site No. 666 in the new lay-out of R. M. C. Yard, Yeshwanthapur in its name from M/s. S. Thimmappa and sought for permission for construction on the said vacant site for marketing in agricultural produce in the market yard. Petitioner has annexed the copies of those representations dated 3-9-1986, 31-1-1987 and 10-11-1996 as Annexures-A, A-1 and A-2. According to the petitioner's case, the 3rd respondent-market committee accorded the permission vide its order dated 26-8-1987 subject to the conditions which have been enumerated therein and mentioned in paragraph 1 of the writ petition and in pursuance of communication, the sale deed was registered after necessary payment being made by the petitioner. There was some dispute about under valuation and according to the petitioner vide order dated 2-11-1988 the same was remanded back for decision afresh to the Special Deputy Commissioner for detection of undervaluation, by the I Additional City Civil Sessions Judge at bangalore who had set aside the original order passed by the special Deputy Commissioner earlier. Petitioner's further case is that the petitioner as he had already deposited 25% was called upon to pay the remaining balance of 75% within 15 days from the date of communication dated 16-5-1989 and the petitioner did made necessary payments and subsequently vide cheque No. 978701, dated 27-5-1989. That petitioner paid the full amount of the premises bearing No. 666 under 25 : 75 loan scheme. The possession of the shop was delivered to the petitioner by the 3rd respondent on 19-6-1996. That petitioner paid the full amount of the premises bearing No. 666 under 25 : 75 loan scheme. The possession of the shop was delivered to the petitioner by the 3rd respondent on 19-6-1996. Petitioner's further case is that he found certain defects in the shop-cum-godown and made a representation on 25-6-1996. According to the petitioner's case, petitioner made several requests to the respondent to remove the defects and dispose of that representation. But nothing was done. Petitioner's case is that in the present premises namely premises bearing No. 666, the accommodation is meagre for marketing which includes storing. To indicate his quantum of business, the petitioner has stated the annual assessed turnover for the years 1994-95, 1993-94 and 1992-93. Petitioner's case is that he had paid upto date market fee to the market committee and no balance is outstanding. Petitioner has further stated that the petitioner received an order dated 17-7-1997, a copy of which the petitioner has annexed as Annexure-J8 to the writ petition, whereby the petitioner was informed that the allotment of shop-cum-godown No. 666 was being forfeited and the respondent 3 State wanted to take back the possession of the premises from the petitioner. Petitioner's further case is stated in Paragraph 6 of the writ petition that he did not receive any communication or notice dated 26-4-1997 mentioned in the impugned order. It had been clearly averred as under. "the alleged notice dated 26-4-1997 referred to in the order dated 17-7-1997, as per Annexure-J, has not been received by the petitioner". The same averment is also averred in Paragraph 13. Petitioner's case is that his shop was being forfeited in violation of principles of natural justice without giving them any notice about the forfeiture of licence. Therefore, the petitioner has challenged the order impugned dated 17-7-1997 as is being in violation of principles of natural justice and fair play. ( 3 ) ON notice being issued, respondent 3 filed a common statement of objections supported by affidavits on 17-9-1997, under the Writ Petition Nos. 22204, 22210 and 22887 of 1997. In paragraph 11 of the statement of objections dealing with the matter relating to Writ Petition No. 20887 of 1997, it has been averred that; "after the Market Committee constructed shop-cum-go-downs on site No. 666 by investment of 75% of the amount, the possession thereof was delivered to the petitioner on 19-6-1996 under an agreement". In paragraph 11 of the statement of objections dealing with the matter relating to Writ Petition No. 20887 of 1997, it has been averred that; "after the Market Committee constructed shop-cum-go-downs on site No. 666 by investment of 75% of the amount, the possession thereof was delivered to the petitioner on 19-6-1996 under an agreement". So far upto this stage, there appears there is no dispute between the parties that possession was delivered on 19-6-1996. In the statement of objections it has further been averred that. "even thereafter the petitioner did not shift his place of business into the constructed shop. Therefore, having no other alternative, the market committee issued a notice dated 5/26-4-1997 to show cause why the allotment should not be forfeited. There was no response by the petitioner. Having no other alternative, the market committee in its meeting held on 2-7-1997 resolved to forfeiture of allotment made in favour of the petitioner and the said decision was duly communicated by the secretary by his order dated 17-7-1997 and the possession of the shop-cum-godown was resumed by the market committee". ( 4 ) A perusal of these allegations in the counter affidavit/statement of objections per se appears to be very deficient. Petitioner's case is that the letter which has been referred as Annexure-J dated 26-4-1997 has never been served on the petitioner nor has been received by the petitioner. This allegation has not been controverted in the counter affidavit. Only it has been asserted that the committee issued notice dated 5/26-4-1997. Whether it was issued by ordinary post, whether it was issued under certificate of posting or it was issued under registered A. D. post, it has not been very clearly stated. Along with the statement of objections, no copy of the A. D. has been produced. No doubt, learned Counsel for the respondent tried to place before me the copy of letter dated 26-4-1997, to show that there is a seal on the copy that it was sent by registered A. D. post, but seal does not bear the signature of the person who had put that seal. Also, he has not been able to place the A. D. itself. The principal contention that has been advanced by the petitioner's Counsel has been that the order of forfeiture has been passed in violation of the principles of natural justice. Also, he has not been able to place the A. D. itself. The principal contention that has been advanced by the petitioner's Counsel has been that the order of forfeiture has been passed in violation of the principles of natural justice. The contention of the petitioner's Counsel is that the petitioner was carrying on business in the market yard in the newly allotted accommodation. I do not want to go into these questions of fact on merits. The main thing and the principal thing is whether the decision of forfeiture has been taken in accordance with law and in accordance with fair play and natural justice. It was the duty of the committee to have looked into whether the notice has been served or not. Mere saying that no response has been received is not sufficient. If there was no notice served on the petitioner and there was no proof of service of notice on petitioner in the form of acknowledgement or receipt, fresh steps should have been taken by the Committee to issue fresh notice. Any way, respondents have failed to prove and show that notice dated 26-4-1997 was served on the petitioner. Respondents have failed to controvert the allegations which had been made by the petitioner in paragraph 13 to the effect that the alleged notice dated 26-4-1997 mentioned in the impugned order has not been served on the petitioner. This allegation really has not been countered at all in their statement of objections. Once an allegation made on affidavit like the one made in the petition has not been controverted specifically by the other side in the counter-affidavit or statement of objections, then the ordinary presumption has to be raised that the said assertion or allegation is correct. As such, the statement made in the writ petition that no notice dated 5/26-4-1997, has been served on the petitioner which notice is alleged to be the show-cause notice and when notice was not served on the petitioner, the order of forfeiture or cancellation of allotment which has got civil consequences could not be passed. As such, the statement made in the writ petition that no notice dated 5/26-4-1997, has been served on the petitioner which notice is alleged to be the show-cause notice and when notice was not served on the petitioner, the order of forfeiture or cancellation of allotment which has got civil consequences could not be passed. In the case of State of Uttar pradesh v Maharaja Dharmander Prasad Singh , their lordships of the Supreme Court dealing with the question of permission for construction being cancelled without the presence of the person who claimed to have made large investment in the project where number of grounds required to be determined on factual matter of complexity, observed and laid it down vide paragraph 29 of the decision as under. "we agree with conclusion of the High Court, though not for the same reasons, that there has been such a denial in the proceedings culminating in the order of cancellation. The show-cause notice itself is an impalpable congeries of suspicions and fears, of relevant or irrelevant matter and has included some trivia. On a matter of such importance where the stakes are heavy for the lessees who claim to have made large investments on the project and where a number of grounds require the determination of factual matters of some complexity, the statutory authority should, in the facts of this case, have afforded a personal hearing to the lessees. " We, therefore, agree with the conclusion of the high Court that both the show-cause notice dated 9-1-1986 and the subsequent order dated 19-4-1986 would require to be quashed". ( 5 ) IN the present case, according to the petitioner, he is carrying on business on large scale as mentioned in the petition. Without taking note of the fact or without ascertaining that the notice dated 26-4-1997 has been actually served on the petitioner, the respondents simply observed that, "notice has been sent. He has not furnished any reply. Lease cancelled". In my opinion, such an order is really an order in violation of principles of natural justice particularly when the petitioner on oath asserts that no such notice dated 26-4-1997 alleged to have been issued has been served on him and such an allegation made in the writ petition has not been specifically denied. Respondent has nowhere stated that nor has produced any proof of service. Respondent has nowhere stated that nor has produced any proof of service. It appears that the order of cancellation or forfeiture of allotment of the shop-cum-godown on site No. 666 which has been passed is not only illegal, but it is against the principles of natural justice and fair play. Decision making process suffers from illegality in the sense that principles of natural justice have not been followed. ( 6 ) THE learned Counsel for the market committee Sri B. G. Sridharan submitted while the opening his arguments that the petitioner has got an alternative remedy and the petition should be dismissed on this very ground. He can file a suit for cancellation or declaration of cancellation of allotment as null and void in the Civil Court. Mere alternative remedy is not sufficient. It should be equally efficacious and apart from that remedy of civil suit in this case may not be said to be equally efficacious because here suit may take long period to decide and the business of the petitioner may be adversely affected particularly when the opposite parties have taken back the possession of the shop. Apart from that, as found earlier, the impugned order suffers from the jurisdictional error in the sense that the order has been passed in violation of the principles of natural justice without show-cause notice being served on the petitioner and without ascertaining the service of notice by the authorities concerned. ( 7 ) IN this view of the matter, as the order impugned has been passed in violation of the principles of natural justice, doors have been opened to the petitioner to come to this Court and this court cannot deny the claim. It has been well-settled principle of law since long back. In the case of State of Uttar Pradesh v mohammad Nooh , where their Lordships observed. It has been well-settled principle of law since long back. In the case of State of Uttar Pradesh v mohammad Nooh , where their Lordships observed. "if an inferior Court or Tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court's sense of fair play the superior Court may, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the Court or Tribunal of first instance, even if an appeal to another inferior Court or tribunal was available and recourse was not had to it, it confirmed what ex facie was a nullity for reasons aforementioned". In the case of State of Uttar Pradesh v Maharaja Dharmander prasad Singh, referred by the learned Counsel for the market committee, no doubt it has been observed in Paragraph 14 as under. "on a consideration of the matter, we think, in the facts and circumstances of this case, the High Court should have abstained from the examination of the legality or correctness of the purported cancellation of the lease which involved resolution of disputes on questions of fact as well". There can be no doubt that this is the proposition of law. In paragraph 28 of this very decision, their Lordships further observed. "it not unoften happens that what appears to be a judicial review for breach of natural justice is, in reality, a review for abuse of discretion". Their Lordships further observed, "however, judicial review under Article 226 cannot be converted into appeal. Judicial review is directed, not against the decision, but is confined to the examination of the decision-making process. In Chief Constable of the North Wales police v Evans, refers to the merits-legality distinction in judicial review". Thereafter, their Lordships have quoted the observations of Lord hailsham, J. and Lord Brightman, J. in that paragraph. Here in the present case, as there has been a violation of principles of natural justice in the process of decision-making, the petition could not be thrown on the ground of alternative remedy and specially when the remedy of suit could not be said to be equally efficacious in the context of the facts of the case. Here in the present case, as there has been a violation of principles of natural justice in the process of decision-making, the petition could not be thrown on the ground of alternative remedy and specially when the remedy of suit could not be said to be equally efficacious in the context of the facts of the case. ( 8 ) THUS, in my opinion, there is no substance in the objections that has been raised on behalf of the respondents. There is one more fact that the petitioner has made representation for removing of certain defects vide representation dated 25-6-1996. Petitioner's case is that same has not been paid heed of. Thus considered, it appears just and proper to allow this writ petition. The writ petition is hereby allowed. The order dated 17-7-1997 contained in Annexure-J to the writ petition is hereby quashed by issuance of writ of certiorari. In the result, the respondents are directed to restore the possession of the site to the petitioner immediately before 30-10-1997. It is however open to the respondents to take fresh proceeding according to law keeping in view principles of natural justice and fair play. They should also consider the petitioner's representation dated 25-6-1996 in reply to their notice, if the notice is issued afresh as well, and dispose it of according to law. It is expected that market committee will act keeping in view the objects of the social legislation as well. With these observations, this Writ petition No. 20887 of 1997 is hereby allowed. Costs of the petition are to be borne by the parties respectively. --- *** --- .